Government disclosure and public interest immunity

¶29. On 11 January 2012, the Solicitor to the Inquest made a written request for disclosure of documentation by the government. Disclosure was requested of documents held by all UK government departments and agencies relating to the circumstances of Mr Litvinenko's death. Specific requests were made for any documents relating to the circumstances of Mr Litvinenko's poisoning and death; the history of any contact between Mr Litvinenko and any UK government departments or agencies; and any records of risks and/or threats to him prior to his death, together with any action taken or considered in response.

¶30. In response to this request, the government collated material and made it available for inspection to counsel and the solicitor to the inquest. Access was first granted for inspection of this collated material in late August 2012. The process of collating further material and making it available to the inquest team continued thereafter. In making this material available for inspection, the government made it clear that it reserved its position both as to the relevance of the material, and as to the making of applications for public interest immunity (PII) in relation to it. This was done with the intention of ensuring that the progress of this investigation was not delayed, whilst at the same time preserving the government's position in relation to disclosure in the event that I determined that some or all of the material reviewed was relevant to the inquest and should be disclosed to interested persons.

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¶31. For the hearing on 13 December 2012, counsel to the inquest prepared an open and a closed version of a note concerning the material which had been made available by the government for inspection. The notes expressed a provisional view about that material, as the process of making the material available and inspecting the material was continuing. Counsel to the inquest noted that a significant proportion of the material was of a sensitive nature. The government had made it clear that it was very likely that it would object to the disclosure of the material to interested persons on grounds of PII. However, it was possible to state high level conclusions as to the effect of the government material. These related solely to the effect of the government material taken alone.

¶32. Counsel to the inquest expressed the view that the government material did establish a prima facie case as to the culpability of the Russian State in Mr Litvinenko's death. However, it did not establish a prima facie case as to the culpability of the British State in itself carrying out (by its servants or agents) the poisoning of Mr Litvinenko, or in failing to take reasonable steps to protect him from a real and immediate risk to his life. It did not establish a prima facie case as to the involvement of Mr Berezovsky, Spanish mafia and/or other criminal organisations, Mario Scaramella, or Chechen groups, in Mr Litvinenko's death. It did not establish a prima facie case as to the making by Alexander Talik of threats to kill Mr Litvinenko, or as to any more general involvement on his part in Mr Litvinenko's death. Counsel to the inquest said that a conclusion to the effect that the government material did not establish a prima facie case in respect of any particular issue was not to be interpreted as meaning that there was no evidence at all on that issue contained in the government material.

¶33. On 29 January 2013, I gave directions that any PII certificate was to be served by 15 February 2013, and for a consequent timetable for the determination of any PII issues.

¶34. On 7 February 2013, the then Secretary of State for Foreign and Commonwealth Affairs (the Rt Hon William Hague MP) made a certificate claiming PII in respect of a sample of documents selected from the material made available by the government for inspection.

¶35. On 26 February 2013, I conducted a public hearing to consider the PII application, at which all interested persons had the opportunity to make submissions, as well as a number of media organisations who were legally represented. The transcript of this hearing is available on the Inquiry website. Following legal submissions made at that hearing, on 27 February 2013 I ruled that:

¶a. I had jurisdiction to hold a private hearing at which to consider the merits of the PII claim

¶b. Rather than hold a private hearing in which to address the adequacy of the PII certificate, and specifically whether the claim could and should be further particularised without defeating the claim under consideration, I would continue with the private hearing to consider the merits of the PII claim. If in the course of that hearing it became clear that the claim could be further particularised in a manner that would not jeopardise the claim, and that I would be assisted by further submissions from the interested persons, then I would reconvene the public hearing

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¶c. It was neither necessary nor appropriate to appoint special counsel or PII advocates to represent the interests of interested persons in the disclosure proceedings

¶36. There was then a private hearing of the application, from which the public and most of the interested persons were excluded, at which I considered the merits of the PII claim in more detail.

¶37. On 17 May 2013, I gave my ruling on the PII application, which is available on the Inquiry website. I rejected part of the PII claim, and concluded that some of the information that was covered by the PII claim could and should be disclosed.

¶38. First, I concluded that a number of lines of enquiry could be identified as lines of enquiry to which the documents that were the subject of the PII claim related. Those lines of enquiry included amongst others:

¶a. The possible involvement of Russian State agencies in the death of Mr Litvinenko

¶b. The properties and uses of polonium 210

¶c. UK authorities' knowledge and/or assessment of threats or risks to Mr Litvinenko's life in 2000-2006

¶d. Decisions or actions taken to manage any identified risk

¶Some other lines of enquiry which I concluded could be similarly identified were redacted in anticipation of a challenge to my ruling.

¶39. Second, a description could be given of the types of sensitivity which underpinned the PII claim, and this was set out in my ruling.

¶40. Third, my ruling was able to state:

¶a. That I had considered the PII claim brought in relation to the material relevant to the issue of the possible involvement of Russian State agencies in Mr Litvinenko's death and had upheld the claim

¶b. That I had considered the PII claim brought in relation to the material relevant to the preventability issue and had upheld the claim

¶c. That I had considered the PII claim brought in relation to the material relevant to an identified issue (which was redacted) and had concluded that some gists could and should be given in respect of those issues

¶d. The terms of the gists which should be given (which were redacted)

¶e. That I had upheld the PII claim in respect of further material relating to other issues

¶41. On 31 May 2013, the Foreign Secretary commenced an application for judicial review of the parts of my decision represented by the redacted parts of that ruling. In October 2013, a Divisional Court of the Queen's Bench Division of the High Court (constituted by Lord Justice Goldring, Lord Justice Treacy and Mr Justice Mitting) conducted substantive hearings of this application in public and private hearings.

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¶42. On 27 November 2013, the Divisional Court allowed the Foreign Secretary's judicial review application and quashed my decision to order gists. The court made no formal public decision regarding the lines of enquiry which I had concluded could be publicly identified.